Admor.-Gen. v Wilson, 1972-73 ALR S.L. 79

SECTION 12 ADMOR.-GEN. v. WILSON, 1972-73 ALR S.L. 79 H.C. is a separate contract between the two parties and I think there­ fore that the plaintiff can seek her remedies elsewhere as far as this item is concerned. Finally, there is a counterclaim against the plaintiff by the defendants in this action. It is admitted on all sides that the defendants lost the amount in question and this was 5 the reason why the plaintiff was summarily dismissed. The first witness for the defendants told us that the amount has not been refunded either by the plaintiff or anyone else. He said, in answer to certain questions, that the loss of money was determined at the time at Le2,081.04 and that the amount has still not been paid. In 10 view of the conclusion which I have come to that the plaintiff was negligent at the time I hold further still that the defendants are entitled to recover the said sum of Le2,081.04, the amount of money which the plain tiff lost by her negligence. I hold therefore as follows: The plaintiff's claim against the 15 defendants is dismissed. The amount of Le2081.04 is to be paid by the plaintiff to the defendants. Costs are to be taxed in favour of the defendants. Order accordingly. ADMINISTRATOR-GENERAL v. WILSON High Court (During, J.): April 10th, 1972 (Civil Case No. 226/70) [1] Succession-Administrator-General-right to maintain proceedings-must 20 obtain letters of administration before commencing declaratory action: 25 Before the Administrator-General can commence a declaratory action in respect of property devolving upon him at the death of an intestate he must obtain a grant of letters of administration, as required by s.lO of the Administration of Estates Act (cap. 45) (page 81, line 24 - page 82, line 4; page 82, lines 14-32). , The plaintiff sought a declaration that certain property formed 30 part of an intestate's estate, and all consequential orders and directions. At the hearing the plaintiff, the Administrator-General, admitted that he had not applied for, nor been granted, letters of admin- istration in respect of the intestate's estate which he was adminis- 35 tering. The defendant contended that the action was improperly brought before the court since the plaintiff had not obtained letters of administration before commencing his action as he was required to do under s.1 0 of the Administration of Estates Act (cap. 45). He maintained that while an executor derived his title 40 from the will of a testator and could therefore commence an 79 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS action before probate, an administrator derived title solely from the grant of letters of administration. The plaintiff contended that, unlike an ordinary administrator's, his function as Admin­ istrator-General was that of an executor who could institute an action without a prior grant of letters of administration, and he stated that he believed there had been instances when similar actions brought by the Administrator-General without a grant of letters of administration had been entertained by the court. The plaintiff's claim was dismissed. Cases referred to: (1) Ingall v. Moran, [1944] K.B. 160; [1944] 1 All E.R. 97, applied. (2) Meyappa Chetty v. Supramanian Chetty, (1916] 1 A.C. 603; (1916), 114 L.T. 1002, applied. Legislation construed: Administration of Estates Act (Laws of Sierra Leone, 1960, cap. 45), s.9(1): "The estate of every person dying intestate after the date of the oper­ ation of this Ordinance shall devolve upon the Administrator-General: Provided that, upon the grant of letters of administration under the provisions of this Ordinance, the estate shall be divested from the Ad­ ministrator-General and be vested in the person or persons to whom letters of administration have been granted as aforesaid." s.10: "(1) Whenever the Administrator-General has received information ... that any person has died ... leaving estate within the jurisdiction of the Court . . . the Administrator-General shall . . . call upon . . . to show cause why an order should not be made for him to administer such estate (2) If at the expiration of the period of one month cause shall not be shown ... why the order should not be made ... the Administrator­ General shall petition the Court ... and the Court shall upon being satis­ fied that it is a proper case make an order for the grant of letters of ad­ ministration ... to the Administrator-General." s.14: "The title of the Administrator-General and of any administrator appointed under this Ordinance shall upon such appointment being made, relate back to, and be deemed to have arisen upon the death of the owner of such estate as if there had been no interval of time between such death and appointment." Mrs. Christine Harding for the plaintiff; Rogers-Wright for the defendant. DURING,J.: This action is one taken out by the plaintiff against the defend­ ant for a declaration that the premises at 7 Collier Street, Goderich Village, in the Western Area of Sierra Leone are part of the estate of the late Joshua Onesimus Harding in fee simple absolute, and for all necessary and proper consequential orders and directions. 80 ADMOR.-GEN. v. WILSON, 1972-73 ALR S.L. 79 H.C. The action came up for hearing on March 17th, 1972 before this court and after Mrs. Christine Harding had opened the case for the plaintiff, the plaintiff gave evidence on oath before the court. Under cross-examination by Mr. Cyrus Rogers-Wright, the plaintiff said that he had up to then not applied for nor had letters 5 of administration been granted to him in respect of the estate of the late Joshua Onesimus Harding. Before the case was adjourned to March 24th, 1972, counsel on either side agreed to argue a point of law, to wit, whether the action was properly brought before this court in that the plaintiff, the Administrator-General, 10 had not applied for, nor obtained, letters of administration in respect of the estate of the said Joshua Onesimus Harding, de­ ceased. On March 24th, 1972 counsel on either side argued the point of law before this court. In support of his argument that the plaintiff must apply for and 15 obtain a grant of letters of administration before instituting this action, learned counsel, Mr. Cyrus Rogers-Wright, referred to ss. 9, 10 and 14 of the Administration of Estates Act (cap. 45). He also referred to s.9 of the English Administration of Estates Act, 1925 by way of comparison. Learned counsel submitted that the position 20 of an executor is completely distinct from that of an administrator, including the Administrator-General of Sierra Leone. He referred the court to I Halsbury 's Laws of England, 3rd ed., at 17 where the learned editor had this to say: "An executor derives his title from the will and may therefore commence an action before 25 probate; but an administrator derives title solely from the grant of letters of administration and cannot commence an action before obtaining the grant." Learned counsel also referred the court to the case of Meyappa Chetty v. Supramanian Chetty (2), and to the judgment of Lord 30 Parker of Waddington, where the learned Law Lord stated that the law on the point was well settled ([1916] 1 A.C. at 609; 114 L.T. at 1003): "An administrator ... derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant." 35 In the case of Ingall v. Moran (1) the plaintiff issued a writ in an action brought by him under the Law Reform (Miscellaneous Provisions) Act, 1934, claiming to sue in a representative capacity as administrator of his son's estate, but he had no letters of administration until about two months after the date of the writ. 40 It was held that the action was incompetent at the date of its 81 THE AFRICAN LAW REPORTS inception by the issue of the writ, and that the doctrine of the relation back of an administrator's title, on obtaining a grant of letters of administration, to the date of the intestate's death, could not be invoked so as to render the action competent. 5 Mrs. Christine Harding argued that the action before this court was competent and submitted that a distinction should be made in the case of an Administrator-General, and that what was said by Lord Parker of Waddington in Chetty 's case would only apply to an administrator and not to her client, the Administrator-General 10 and plaintiff in this action. She further submitted that her client was in the same position as an executor who could institute such an action without first obtaining a grant of probate from this court. In argument before me reference was made to s.9(1) of the Administration of Estates Act (cap. 45). The office of the Admin- 15 istrator-General for Sierra Leone is a creature of statute. I could not find in any section of the Act, nor in our High Court Rules, nor in the English High Court Rules any provision which gives the Administrator-General or his counterpart in England any right, power or privilege whatsoever to institute an action of this kind 20 without first obtaining letters of administration. In my opinion s.14 of the Administration of Estates Act (cap. 45) on a proper interpretation and in the light of well-settled authorities does not empower or give the Administrator-General of Sierra Leone the right to institute the action before this court without first ob- 25 taining letters of administration. I disagree with respect with learned counsel for the plaintiff that our Administrator-General should be regarded as an executor who could institute such a proceeding without obtaining probate. In my considered judg­ ment s.1 0 of our Administration of Estates Act is mandatory in 30 so far as the Administrator-General is concerned and this court ought not to lend its aid to the bypassing of such an important mandatory provision. Regard ought seriously to be paid to the fact that where the Administrator-General applies for a grant of letters of administration and alleges that real property forms part 35 of the estate of an intestate a declaration should be made to the court stating that such property belongs to the estate of the intestate and the required stamp duty must be paid before the grant of letters of administration. In the course of her argument before me learned counsel for 40 the plaintiff stated that she had been informed that there had been instances when actions similar or on all fours have been 82 SECTION 13 WELLESLEY-COLE v. THOMPSON. 1972-73 ALR S.L. 83 H.C. entertained by this court, actions brought by the Administrator­ General without his first obtaining a grant. If that was so, in my judgment that was wrong and without authority and indeed contrary to a well-settled point of law that a grant should first be obtained. I hold that this action was incompetent at the date of the issue of the writ. I dismiss the action without prejudice to the plaintiff or any administrator appointed by the court bringing a competent action. I order that the plaintiff do pay to the defendant the costs of this action up to this stage which I assess at Le100. I also order that the plaintiff do pay to the defendant the costs I have ordered before the institution of any fresh proceedings for the declaration and consequential orders sought in this action which I have held incompetent. Suit dismissed. WELLESLEY·COLE and ANOTHER v. THOMPSON High Court (During, J.): April 12th, 1972 (Civil Case No. 169/72) 5 10 15 [ 1] Administrative Law-tribunals-procedure-no interference by court 20 unless all other rights of appeal exhausted: Where a church has estab- lished rules governing the election of its officers and has also established a tribunal to determine conflicts arising from a breach of those or other rules of the church, the courts will only intervene on the ground that proceedings have been conducted unfairly when a plaintiff has exhausted all remedies provided within the church (page 88, lines 10-14). 25 [2] Ecclesiastical Law-election of church officers-procedural defects-no interference by court until all other rights of appeal exhausted: See ( 1] above. The plaintiffs sought an injunction to restrain the defendant, his officers, servants or agents, from holding an election of Church 30 officers until the suit had been disposed of or until further order. The second plaintiff was a churchwarden of St. Phillip's Church, Freetown, an elected member of the Church committee and one of the joint treasurers of the Church. He alleged that he had been prevented from carrying out his duties under the Constitution of 35 the Church, especially in that he had been precluded from taking part in the preparation and certification of the voters' lists for the Church elections. The Constitution of the Church provided for the reference of any dispute under the Constitution to the Archdeacon but there was no evidence that the present dispute had been so 40 referred. 83